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Monday Message 02.11.20

Chair’s Update:
James Mulholland QC

On Thursday 5th November 2020 the government intends to take the nation into a second lockdown. This is envisaged to last for four weeks until 2nd December; however, yesterday Michael Gove confirmed that the lockdown could be extended several weeks longer. Those who run the system do not have a plan as to what happens next and those who work within the system are left uncertain as to whether the courts will continue to function and, if so, whether the methods employed will protect their health. Even in times of crisis, the administration of the criminal justice system remains chaotic and all those whom it affects are left in confusion.

It has long been clear that autumn would bring fresh challenges and the R rate has been on the rise for a couple of months. A raft of focussed measures was required, beyond the introduction of plexiglass into the courts, which would deal with the specific problems created by the need for social distancing. Instead, HMCTS put forward Extended Operating Hours as its sole contribution of substance. This was nothing more than a cost saving exercise rather than an initiative with public health as the primary consideration. Doubling the number of trials in a single courtroom in one day means that there is a large turnover of people in a small space and significantly increases the likelihood of transmission of the virus not only in that court room but in all the communal areas within the building, putting at risk not only the health of the criminal bar, but the health of all court users from prison and court staff to the CPS and police. It makes the job far more difficult for many within our profession at a time when government should be doing its utmost to show they value our commitment and our well-being. Even if the safety of key workers in court does not concern the government then it should be concerned if any failures leave large numbers of the criminal bar unable to work resulting in a stalling of the incipient criminal court recovery plan.

Last week’s Health and Safety Executive (HSE) report into breaches of social distancing rules at Westminster Magistrates’ Court by HMCTS staff is only one example of a wider and more general problem across the court estate. The safety measures in court buildings have been inconsistent for months. Whilst the focus has been on plexiglass, other problem areas have gone unchecked. Until the middle of last week, there was no universal requirement for anyone in the cell area to wear PPE. Many court staff have not received social distance training. Not all courtrooms allow social distancing for professional users as the trial proceeds.  Regular breaks are not taken in courts with inadequate ventilation systems. Social distancing is often not followed in other areas of the court as legal teams, deprived of conference rooms, endeavour to discuss confidential matters relating to trials in corridors without being overheard and staff forget to maintain distance as time passes. The wearing of masks within the court building is erratic. The level of cleaning in many areas is sporadic despite assurances in April when we first entered lockdown by the then CEO of HMCTS Susan Acland-Hood, that a new court estate cleaning contract agreed with Engie would see regular deep cleaning. Throughout this, the pressure to increase the number of jury trials grows.  It is no surprise that the Crown Court at Manchester Crown Square announced outbreaks of individuals with the virus who had been in the court building on three consecutive days last week.  The building was cleaned and trials continued.

The room for manoeuvre is over. There needs to be an agreed national risk assessment in place which is properly and consistently applied by each court to determine the safety of court users. We will seek a meeting with the Health and Safety Executive to ensure that courts are inspected on a regular basis and to facilitate a process by which barristers can report individual courts which are failing to comply with basic safety requirements.

A national protocol for remote hearings is also now a matter of the greatest importance impacting upon the health of all who work within the criminal justice system. It has been two months since the CBA called for the senior judiciary to provide a structured approach to the issue with clear rules of practice for all courts to follow. A draft document prepared by Bar, Law Society and CPS was sent to the Senior Presiding Judge in the summer. A reluctance at the highest level to tie the hands of Resident Judges in deciding the best approach for their courts may have had some rationale when England and Wales adopted a more localised approach to Covid risk management in August and the message was to return to the office. However, since September, the national guidance has reverted to ‘work from home’ and this week we enter a period of, at least, a month, possibly longer, when all but essential services will cease to operate at a national level. The likelihood remains high that after national lockdown is eased, large parts of the country will still continue to go in and out of Tier 3 throughout 2021 and, possibly, into 2022.

Criminal barristers remain key workers. Government first included us in this definition at the end of March with further detailed clarification at the end of April. We are one of the pillars upon which the entire system relies.  The courts are our workplace. Only in September, government, when defining “key public services”, made specific reference to “those essential to the running of the justice system”.

The courts were yesterday specifically included as one of “[a]number of public services” which “will also stay open” and for which the public “will be able to leave home to visit”.  Despite this, there is still no coherent national safety policy for court users to follow when attending criminal courts. If the courts are to continue functioning, the health of the criminal bar needs to be safeguarded. This was yesterday reinforced by the Lord Chief Justice who said, “it is vital for the well-being of the country that the administration of the justice continues to operate”. He added that, “the legal profession…are all key workers, vital to the continued running of the courts and tribunals”.

Criminal barristers are self-employed, mobile and travel the length and breadth of England and Wales far from their homes on hourly rates often equal to or less than the national minimum wage. They are increasingly treated as zero hours workers yet are expected to fulfil their duties without question. It is fundamental that, as they continue to strive to prevent the system from collapse, measures are in place to protect them from the risk of serious harm. Removing physical attendance at all hearings which can take place remotely and without disadvantage to the parties concerned is now essential to public health and in order to ensure that jury trials can continue in person. It should not be subject to the temperaments of individual judges in different court centres.

It needs to be repeated that buildings outside the court estate with large rooms must be found and opened. In the four months since government was told about the need for a minimum of sixty extra courtrooms for criminal work, five Nightingale buildings now provide ten extra courtrooms. The aim should not be to cram as many people as possible into the limited amount of existing space. With a virus that can be transmitted by close proximity, what is needed is more space. Broadening the workload across as many buildings as possible reduces numbers in any particular location.  The task is not an onerous one. There has never been a time in recent history when so many buildings have stood empty for such a lengthy period.

In light of what faces our society, these are basic requests. If they continue to be ignored, there will be obvious consequences. The courts will cease to function in the short term, the Crown Court cases backlog will continue to rise to unprecedented levels and the devastating impact on the criminal justice system will be felt for a generation.

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